Citation Nr: 1419316
Decision Date: 05/01/14 Archive Date: 05/16/14
DOCKET NO. 10-34 915 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania
THE ISSUE
Entitlement to an initial rating in excess of 10 percent for septal deviation, to include on an extraschedular basis.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
A. Adamson, Counsel
INTRODUCTION
The Veteran served on active duty from May 1961 to May 1965. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office in Philadelphia, Pennsylvania (RO).
In February 2012, the Veteran appeared at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). The hearing transcript from this proceeding is of record.
The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.
REMAND
The Veteran's claim that he is entitled to an initial rating in excess of 10 percent for his septal deviation is centered on the contention that this service-connected disability markedly interferes with employment and causes severe functional limitations in his life. In February 2012, at his Travel Board hearing, he described interference with eating, employment, and his social life, and suggested that these factors render impractical the scheduler standards of 38 C.F.R. § 4.97, Diagnostic Code 6502, which allows only for a maximum 10 percent rating for septal deviation manifesting with 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side. The Veteran's service-connected condition is manifested by a hole in his nasal passage, which, he contends, causes constant discharge from his nose. He reports that this occurs when he eats, while he is working, and while he sleeps. He constantly has to walk around with a napkin, and when he is eating it becomes uncontrollable. He reports that this "causes a mess...in the bed" when it occurs during his sleep and that it is otherwise embarrassing when it occurs around other people. He reported that it drips onto his company shirts at work. The Veteran also reported that he has tried several medications, but nothing helps. He also reported that this impacts intimacy due to its embarrassing nature.
The Veteran has undergone two VA examinations during the period of this claim, the most recent of which was in August 2011. At that time, according to the examination report, the Veteran denied any issues with nasal discharge. Thus, it appears, based upon the February 2012 hearing testimony, that the Veteran's septum deviation symptoms have worsened since his August 2011 examination. VA's duty to assist includes the conduct of a thorough and comprehensive medical examination. Robinette v. Brown, 8 Vet. App. 69, 76 (1995). This includes providing a new medical examination when a Veteran asserts or provides evidence that a disability has worsened and the available evidence is too old for an adequate evaluation of the current condition. Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Thus, this claim must be remanded as a new VA examination is warranted to assess the current severity of the Veteran's service-connected septum deviation.
As to the extent to which the Veteran asserts that his septum deviation should receive a rating in excess of the maximum 10 percent rating under Diagnostic Code 6502 on an extraschedular basis, the Board notes that disability ratings are based as far as practicable, upon the average impairment of earning capacity. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation may be assigned commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2013).
The Board itself may not assign an extraschedular rating in the first instance, but must leave that initial determination to the Under Secretary for Benefits or the Director of the Compensation Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (recognizing that "the [Board] is not authorized to assign an extraschedular rating in the first instance under 38 C.F.R. § 3.321(b)" or § 4.16(b)); Smallwood v. Brown, 10 Vet. App. 93, 98 (1997); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). The Board may, however, consider and adjudicate the issue of whether the RO should refer such a matter to appropriate personnel for extraschedular consideration pursuant to the procedures of 38 C.F.R. §§ 3.321(b)(1) and further may determine, after an initial review by the authorities pursuant to §§ 3.321(b)(1), the propriety of assigning an extraschedular evaluation. See Smallwood, 10 Vet. App. at 98 (acknowledging that precedent did "not limit the [Board's] duty to consider whether an extra-schedular rating should be addressed by the appropriate official"); Floyd, 9 Vet. App. at 94-95 ("38 C.F.R. § 3.321(b)(1) acts as a funnel to channel requests for an extraschedular rating through certain officials who possess the delegated authority to assign such a rating in the first instance"). In this case, the Board finds that such consideration must occur, as it is the basis upon which the Veteran claims an increased rating is warranted.
Further, the Veteran's treatment records from the Gloucester Community Based Outpatient Clinic (CBOC) dated through October 6, 2010, are of record within the Veteran's paper claims file. No additional records are available for the Board's review in either the paper or the electronic claims files. On remand, relevant ongoing VA medical records should be obtained. 38 C.F.R. § 3.159(c)(2) (2013).
Accordingly, the case is REMANDED for the following action:
1. The RO or AMC should undertake appropriate development to obtain a copy of any outstanding records pertinent to the Veteran's claim, to include any pertinent, non-duplicative records from the Gloucester CBOC, and any other VA healthcare facility from which the Veteran has received treatment. If any requested records are not available, the record should be annotated to reflect such and the Veteran should be notified.
2. Then, the RO or the AMC should afford the Veteran a VA examination by an examiner with sufficient expertise to determine the current severity of his service-connected septal deviation, to include examination and discussion as to the extent to which the Veteran's septal deviation symptoms present marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. The claims file and any pertinent evidence in Virtual VA that is not contained in the claims file must be made available to and reviewed by the examiner. Any indicated evaluations, studies, and tests deemed to be necessary should be accomplished. The RO or the AMC should ensure that the examiner provides all information required for rating purposes. The rationale for all opinions expressed must also be provided.
3. Once the requisite development has taken place, the RO or the AMC should forward the claims file to the Director of the Compensation Service for consideration of the assignment of an extraschedular rating for the Veteran's increased rating claim involving his service-connected septal deviation, pursuant to the provisions of 38 C.F.R. § 3.321(b). This analysis should consider the entire period of appeal, which has been pending since September 2009.
4. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the RO or the AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, the case should be returned to the Board.
The purpose of this remand is to assist the Veteran with the development of his claim. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim.
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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DENNIS F. CHIAPPETTA
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).